This term, the Supreme Court sank its teeth into yet another technology privacy issue that divided the country: whether the police can snoop in the smartphone of an arrested person without getting a warrant first. Looking at two cases in California and Massachusetts where photos and call logs from phones helped police bust a gang member for a shooting and a drug dealer, the country's highest court ruled that law enforcement should have gotten warrants before trawling through the contents of their phones.
One of the guys had a smartphone and other a dumb flip phone, but the Court didn't care about the distinction; both warrantless searches violated the Fourth Amendment. "The police generally may not, without a warrant, search digital information on a cell phone seized from an individual who has been arrested," ruled the court in an opinion [pdf] issued Wednesday morning, which had many a privacy advocate doing a happy dance.
Phones are "now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy," writes a humorous Justice John Roberts, who authored the unanimous opinion. The Supremes said the privacy rights over the photos, videos, apps, emails, texts, and contacts on our phones outweighed law enforcement's needs; they were not swayed by the government's argument that police needed to search the phones quickly to prevent evidence from being destroyed or that the data could endanger them.
"Digital data on the phone cannot itself be used as a weapon to harm an arresting officer or to effectuate an arrestee's escape," wrote the court, saying that it was okay for cops to look at the outside of the phone. No need to close their eyes while confiscating the device. The court acknowledged that police already have ways of combating remote wipes of the phone. In fact, some forensics experts say it's better that cops don't immediately search phones, instead advising they throw them into a signal-blocking Faraday pouch for later examination (with a warrant), due to the risk of erasing or contaminating evidence.
Showing that they "get it," the Supremes expressed worry about the sheer volume of information on a cell phone and the privacy intrusion of a search, which "would typically expose to the government far more than the most exhaustive search of a house." The opinion makes the obvious observation that searching a digital device someone is carrying is different from examining a non-Internet connected container -- such as a cigarette pack with heroin inside it. In addition to granting access to cloud servers, "modern cell phones have an immense storage capacity, [storing] millions of pages of texts, thousands of pictures and hundred of videos," wrote Chief Justice John Roberts, who apparently has a great data plan on his phone. He noted that phones collect so much information from different places, over a long period of time, creating "a digital record of nearly every aspect of [people's] lives."
The Court notes that the ruling will make life difficult for cops. "Privacy comes at a cost," wrote Roberts.
